Plaintiff (Attorney Lee Dong-soo et al., Counsel for plaintiff-appellant)

Defendant (Attorney Han-chul et al., Counsel for defendant-appellee)

September 10, 2010

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall not engage in pharmacy business from among the buildings listed in the attached Table list (1 omitted).

1. Basic facts

A. The use inspection of the building was completed around August 1994 with respect to the building of X-Gaco in the annexed list on the ground of the land located on the land located on the Daejeon Seo-dong, Seosung-gu, Daejeon (Land Number omitted). At that time, about 440 stores of the building of this case were around 440.

B. On February 1995, the X-Coa management body composed of the sectional owners and occupants of the instant commercial building (hereinafter “the instant management body”) established the rules on the operation of superstores (the store) (hereinafter “instant rules”) (hereinafter “instant rules”). The instant rules were implemented following four amendments made on August 16, 1996; January 16, 199; June 1, 2004; and January 1, 2007. The main contents of the rules are as follows.

1) The instant management body is composed of all the “the sectional owner and possessor” (Article 1(3)). The membership of the management body of this case is a person who owns and carries on the business by possessing the sectional ownership of the instant commercial building, a person who possesses the sectional ownership of the instant commercial building but occupies and leases it, and a person who leases and operates the instant commercial building’s sectional ownership (Article 5(1) through (3)).

2) For the smooth operation of the instant commercial building, the general meeting of the management body, where all the occupants and occupants (owners) become the members of the management body, and the multi-story meeting where all the occupants of each floor (other than the owners in the case of a lease) are the members (Article 10(1) and (2)), and the members of the management committee on each floor shall be elected from among the members comprised of the occupants of the sectional owners and lessees (the power of attorney of sectional owners) (Article 10(4)).

3) The general meeting of the instant management body shall pass a resolution with the consent of at least 3/4 of the respective voting rights of the members regarding the establishment, amendment, repeal, etc. of the instant regulations (Article 14(2)2).

4) The occupant of each shop of the instant commercial building shall observe the total operating committee, the management office, and the contracted designated type of business (Article 25(1)), and in cases of changing or adding the type of business, he/she shall obtain approval from the total operating committee in writing (Article 25(2)). The tenant prior to the enactment of the instant commercial building shall conduct business according to the reported usage, and when it is necessary to change the purpose of business, he/she shall obtain approval from the total operating committee. After the enactment of the instant regulations, the tenant must start business with prior approval from the total operating committee (Article 25(5)1 and 2).

5) 이 사건 상가의 각 층별 업종 구분은, 지하 1층은 청과, 스낵, 건어물, 야채, 생선, 제과, 슈퍼, 재래시장품목, 1층은 화장품, 보석, 잡화, 제과점, 안경, 문구, 란제리, 2층은 수선, 은행, 커피숍, 전문의류매장, 3층은 분양안내문의 49개 품목, 4층은 병원, 전문식당가, 학원, 커피숍, 미용실, 체육관, 5층은 체육시설, 병원, 학원(별도의 협약에 준한다)으로 하고, 자세한 사항은 층별 번영회에 위임하여 시행키로 한다(제25조 제5항 제3호).

C. From August 28, 2003, the Plaintiff: (a) from around 28, 2003, leased the instant commercial building (number 2 omitted) and operated a pharmacy with the trade name of “○○ pharmacy”; (b) around that time, the Plaintiff obtained approval from the total management committee for changing the purpose of use of sports facilities (a swimming pool and bowling pool) already designated as a type of business so as to operate a pharmacy from five floors of the total

D. On November 23, 2005, the 5th floor conference, which is the prosperity of each floor, organized pursuant to Article 10 of the instant protocol, established and implemented the 5th floor conference rules (hereinafter “instant prosperity rules”). Article 12 of the instant prosperity rules provides that “The 5th floor does not impose any restriction on the category of business.”

E. From September 10, 2009, the Defendant: (a) leased the instant shopping mall from around September 10, 2009 to run the pharmacy under the trade name of “△△ pharmacy”; (b) the number of stores of the instant shopping mall is about 340 as of September 10, 2009.

[Grounds for Recognition: Evidence No. 1-1, 2, Evidence No. 2-4, Evidence No. 6, Evidence No. 7-37, 40, Evidence No. 1, Evidence No. 5-1, and the purport of the whole images and arguments No. 5-2]

2. Determination of the parties' arguments

A. The parties' assertion

1) Summary of the Plaintiff’s assertion

According to Article 25(2) of the instant protocol, the possessor of each shop of the instant commercial building shall obtain approval from the total operating committee in writing when changing or adding the type of business, and pursuant to Article 25(5)(2) of the instant protocol, the occupant of the instant commercial building after the enactment of the instant protocol must start the business after obtaining prior approval from the total operating committee. Although the Defendant obtained prior approval from the total operating committee, he is running the pharmacy business in the instant commercial building without going through such procedures. This is an act in violation of the instant regulations, thereby incurring damage to the occupants of the Plaintiff and the instant commercial building, and thus, the Defendant is prohibited from running the pharmacy in the instant commercial building (number 1 omitted).

2) The defendant's argument

Since the management body of this case is composed of occupants or occupants while excluding the sectional owners of the commercial building of this case, it does not fall under the management body under the Act on the Ownership and Management of Aggregate Buildings (amended by Act No. 10204, Mar. 31, 2010; hereinafter "the Aggregate Buildings Act"), and even if the management body of this case constitutes the management body under the above Act, it does not meet the above requirements even though the management body of this case is the management body under the above Act, it did not meet the above requirements even though it obtained the approval of more than 3/4 of the sectional owners and voting rights, the quorum for the enactment of regulations under the Aggregate Buildings Act, at the time of the enactment of

B. Determination

On the premise that the management body of this case was enacted and implemented lawfully and effectively by the management body of this case, the plaintiff sought a prohibition of pharmacy business activities in the commercial building of this case (story 1 omitted) by the defendant. Thus, it is examined whether the management body of this case is a management body under the Aggregate Buildings Act and whether the management body of this case satisfies the requirements to meet the management body rules under the Aggregate Buildings Act.

1) Whether the management body of this case constitutes a management body under the Aggregate Buildings Act

A management body under Article 23 (1) of the Aggregate Buildings Act is not an organization established only through an organizational act, but where there is a building which constitutes a sectional ownership relationship, it is naturally an organization formed by all sectional owners. If an organization composed of sectional owners and meets the purpose of Article 23 (1) of the same Act, it may perform its role as a management body regardless of its form of existence or title. Even if it is a management body composed of sectional owners and persons who are not sectional owners, it may concurrently hold the character of a management body composed solely of sectional owners (see Supreme Court Decision 94Da27199 delivered on August 23, 196, etc.).

In this case, the management body of this case is composed of "the sectional owner and possessor" (Article 1(3) of the Act). The management body of this case is composed of "the sectional owner and possessor of the commercial building of this case" (Article 1(3). The person who owns the sectional ownership of the commercial building of this case but has not occupied, leased, and the person who leases and operates the commercial building of this case is entitled to membership of the management body of this case (Article 5(1) through (3). The general assembly of the management body of this case, which is all the occupants and tenant (owner) of the commercial building of this case, shall be established as the organization of this case. In light of the above legal principles, since the management body of this case is composed of the sectional owner of the commercial building of this case as well as the occupant or tenant of this case as its member, the management body of this case shall not be deemed to be a management body composed of sectional owners under the Act on the Aggregate Buildings, but it shall be deemed to be a management body of this case, including the sectional owner of the commercial building of this case.

2) Whether the statute of this case satisfies the requirements to constitute an agreement under the Aggregate Buildings Act

Article 28(1) of the Aggregate Buildings Act provides that matters not provided for in this Act among those among sectional owners regarding the management or use of building, site or attached facilities may be determined by regulations. Article 41(1) of the same Act provides that, as a provision concerning written resolution, matters which are determined by the management body meeting in accordance with the above Act or regulations, which are stipulated by resolution, shall be decided by the management body meeting if not less than 4/5 of sectional owners and not less than 4/5 of voting rights agree in writing.

In addition, Article 29 (1) of the same Act provides that when the establishment, amendment, and repeal of the management body's regulations, the consent of at least 3/4 of both sectional owners and voting rights shall be obtained at the meeting of the management body, and in this case, when the establishment, amendment, and repeal of the regulations has a special effect on some sectional owners' rights, the consent of those sectional owners shall be obtained.

However, Article 29 (1) of the Aggregate Buildings Act provides that the assembly of the management body shall obtain the consent of at least 3/4 of both the sectional owners and voting rights when it establishes, amends, and repeal the management body's regulations (see Supreme Court Decision 2008Da61561, Dec. 24, 2008). In light of the above legal principles, Article 41 (1) of the same Act, which provides for the quorum when a written resolution is made, is also a mandatory provision.

In this case, there is no evidence to acknowledge that the regulations of this case obtained the approval of more than 3/4 of the sectional owners and their voting rights of this case, or that the regulations of this case were established by the written agreement of not less than 4/5 of the sectional owners and their voting rights (at the date of pleading, the full bench asked the plaintiff to submit evidentiary materials about the quorum, but the plaintiff cannot submit relevant materials because there was no evidence about it at all). However, even though about 15 years have passed since the regulations of this case were enacted and the regulations of this case function as a collective law regulating the commercial building of this case, it is merely asserted that the regulations of this case were met the requirements for the quorum under Article 29(1) of the Multi-Family Building Act, which is a mandatory provision, and unless there is no evidence about them, it cannot be readily recognized that the regulations of this case were established by the written agreement of not less than 3/4 of the sectional owners and their voting rights of this case, or by not less than 4/5 of the sectional owners and their voting rights of this case.

Therefore, the plaintiff has been working as an organization law of the commercial building of this case for about 15 years since the enactment of the Code of this case, and even though there was no problem about the validity of the Code of this case in many related lawsuits prior to this case, the defendant's assertion that the defendant's assertion about the legitimacy and validity of the procedure for the enactment of the Code of this case as the lawsuit of this case is against the principle of good faith. However, in multiple related lawsuits prior to this case, it seems that there was no clear determination about the validity of the Code of this case, and if the plaintiff rejected the establishment of the Code in violation of the mandatory provisions of this case or the assertion about invalidation on the ground that it is an exercise of a right contrary to the principle of good faith, it would be dismissed to the purport of the legislation of the Act on Aggregate Buildings and thus, such assertion cannot be viewed as violating the principle of good faith (see Supreme Court Decision 2003Da14812, Jan. 27, 2004).

C. Sub-committee

Ultimately, as long as there is no evidence to acknowledge the validity of the instant agreement, the Plaintiff’s assertion seeking a prohibition of pharmacy business in the instant commercial building (story 1 omitted) against the Defendant, based on the instant agreement, on the premise that the instant agreement was enacted or amended in a valid manner, is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Yoon Tae-sik (Presiding Judge)